Articles Posted in Medical Negligence

Tenn. Code Ann. Sec. 29-26-122 requires medical malpractice complaints to be supported by a certificate of good faith. This statute became effective October 1, 2008, yet because health care cases can linger for years in pre-trial stages, many cases filed before that date are still active. The Tennessee Court of Appeals recently considered how the certificate of good faith statute affects amended pleadings in cases originally filed before October 1, 2008.

In Rogers v. Jackson, No. M2013-02357-COA-R3-CV (Tenn. Ct. App. May 19, 2014), plaintiff filed a medical malpractice suit regarding the death of his wife. The original complaint was filed on February 1, 2008. Defendants filed an answer, then on October 2, 2008 moved to amend their answer to assert comparative fault against a second doctor’s group as well as the deceased patient. The motion to amend was granted. Based on this amended answer, plaintiff filed an amended complaint on December 29, 2008, adding this additional doctor and his group as defendants in the suit.

Arguing that the amended pleadings were filed after the implementation of the certificate of good faith requirement, the added defendants filed a motion to strike the allegations of fault in the amended answer and amended complaint based on the argument that no certificates of good faith were filed regarding the claims against them. The trial court denied the added defendants’ The Tennessee Court of Appeals, however, affirmed the trial court’s decision to allow the case to proceed against the defendants named in both the original and the amended complaint.

In Tennessee, before a party may file a lawsuit against a healthcare provider for medical malpractice, the party must give 60 days’ pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121(a).  In Brown v. Samples, No. E2013-00799-COA-R9-CV (Tenn. Ct. App. Apr. 29, 2014), the State of Tennessee was granted permission to pursue an interlocutory appeal when it argued that it was not provided with effective pre-suit notice of a claim for medical malpractice arising out of the death of a child during delivery at a state-run hospital.  The claims commissioner disagreed with the state’s position and denied the state’s motion to dismiss.  On appeal, the Court of Appeals upheld the decision of the claims commissioner finding there was no special requirements for pre-suit notice to the state.

The state argued that in order for pre-suit notice to be effective against it, the notice must be sent to (1) the Attorney General of Tennessee or an Assistant Attorney General, or (2) the Division of Claims Administration of the State.  Section 121 provides that the notice must be given “[t]o a health care provider that is a corporation or other business entity at both the address for the agent for service of process, and the provider’s current business address, if different from that of the agent for service of process.”  The state argued that its agent for service of process is the attorney general or any assistant attorney general relying on Rule 4.04(6) of the Tennessee Rules of Civil Procedure as authority, which applies to service of the summons and complaint in a lawsuit.  However, the court noted that Rule 4.04, by its own terms, applies only to service of lawsuits, not pre-suit notice.  The state also argued that because claims against the state must be filed in the Division of Claims Administration, the Division of Claims Administration is an alternate agent for service.  However, the court notes that the regulations pertaining to filings with the Division of Claims Administration apply to claims and not pre-suit notice.  Also, importantly, the court reminds us that actual notice is the goal, so where this is actual notice, the defendant should not be permitted to complain.  There was no dispute that the state had actual notice of this case.

The court also held that to the extent the notice was deficient, the plaintiffs demonstrated “extraordinary cause” under Tenn. Code Ann. § 29-26-121(c), which allows the court to excuse relatively minor technical flaws.

Our office is fortunate to be sought out in a large number of Tennessee medical malpractice cases involving cancer.   Most of the cases involve a delay in the diagnosis of cancer, that is, that the patient presented with certain symptoms or physical findings that should have triggered a diagnosis of cancer earlier than the cancer was actually diagnosed.

Our internal review of these cases often cause us to conclude that the health care provider failed to properly and / or promptly respond the the patient’s complaints, condition and symptoms.  Where we often get hung up, however, is what lawyers causally call the "so what?" question.  In other words, even if we can establish that an error was made, how did the delay in diagnosis (and the start of treatment) harm the patient?

We know, or at least think we know, that prompt treatment is good and delayed treatment is bad.  Prompt treatment cannot start without prompt diagnosis.  Thus, the thought goes, a delay in diagnosis always harms the patient because treatment was by definition delayed.

The Tennessee Court of Appeals has affirmed a trial court’s decision to grant an extension to file certificate of good faith in a medical malpractice case,  finding “good cause” based on parties’ confusion on Tennessee case law. 

In Stovall v. UHS of Lakeside, LLC , No. W2013-01504-COA-R9-CV (Tenn. Ct. App. April 22, 2014), the Tennessee Court of Appeals rejected defendant medical providers’ attempts to dismiss plaintiff’s medical malpractice suit for failure to strictly comply with the certificate of good faith requirements set forth in Tennessee’s health care liability act.

In December 2010, Mrs. Stovall filed a medical malpractice suit against defendants for allegedly causing the death of her husband. A certificate of good faith was filed with the complaint, as required by Tenn. Code. Ann. §29-26-122(d)(4). That statute states that “the certificate of good faith shall disclose the number of prior violations of this section by the executing party.” Here, however, the certificate attached to the complaint did not assert that Mrs. Stovall’s counsel had no prior violations of the good faith certificate statute.

In Tennessee, before a plaintiff may file a lawsuit for medical malpractice, he or she must give pre-suit notice to the defendants in compliance with a Tennessee statute, Tenn. Code Ann. § 29-26-121(a). 

In Potter v. Perrigan, the Court of Appeals recently addressed whether a plaintiff who properly gives notice and files a medical negligence lawsuit but later voluntarily dismisses the lawsuit must give notice again before re-filing the case. In Potter, the trial court dismissed the second lawsuit finding the plaintiff failed to comply with the requirement of pre-suit notice since the plaintiff did not give notice a second time before re-filing the lawsuit.

The Court of Appeals disagreed with the trial court finding that the applicable notice statute required notice sixty days in advance of the filing of a lawsuit and that plaintiff gave notice more than sixty days prior to filing the suit the second time when the plaintiff gave notice before the initial filing of the case. The Court of Appeals noted that the second lawsuit asserted the same cause of action against the same defendants. 

The recent case of  Payne v. Tipton County gave the Tennessee Court of Appeals the opportunity to review the finding of the trial court of no liability on the part of the defendant, Tipton County, for failure to provide appropriate and timely medical care to an inmate.  The inmate suffered a severe hypertensive crisis while in custody of the county,  leading to renal failure, a stroke, heart attack, hemorrhage on his brain, anemia, seizures, kidney failure, and other conditions and resulting in a 45-day hospital admission.

The inmate appealed, and the Court of Appeals reversed the finding of the trial court. In reaching this decision, the Court of Appeals addressed what duty was owed to the inmate by Tipton County. The court noted that under Tennessee law prison officials have a duty to exercise reasonable care for the protection of those in their custody, but that they are not insurers of a prisoner’s safety. Instead, prison officials must act reasonably in light of the inmate’s known condition. The court went on to discuss the duty of a prison to provide inmates with access to proper medical treatment.

The court reviewed the evidence and testimony presented at trial and found that the County failed to provide the inmate with appropriate medical care and failed to follow its own procedures with regard to providing the inmate with medical care. Specifically, the Court of Appeals found that Tipton County breached its duty to provide proper medical treatment during the inmate’s confinement by:

This is yet another Tennessee medical malpractice (health care liability) notice case and the issue is whether strict compliance is required for T.C.A. § 29-26-121 (a)(3) and (4), which requires an affidavit from the party mailing the notice. The underlying procedural facts were not in dispute: plaintiff fully and strictly complied with the pre-suit notice provisions of T.C.A. § 29-26-121(a) but failed to simultaneously file an affidavit of the party mailing the pre-suit notice. Instead, the plaintiff filed it after the notice was given and before the defendants filed any responsive pleading. In response, the defendants filed a “gotcha” motion to dismiss arguing the failure to simultaneously file the affidavit required a dismissal of the case.

The trial court disagreed noting the error had been remedied prior to the defendants filing a responsive pleading and ultimately finding the plaintiff had complied with the notice provision of the Act. An interlocutory appeal was granted pursuant to Rule 10 and the Court of Appeals made quick work of the issue relying on the Tennessee Supreme Court’s decision in Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., No. M2012-00582-SC-SO9-CV, 2013 WL 61580000.

In Stevens, the Tennessee Supreme Court had been asked to decide whether strict compliance was required with T.C.A. § 29-26-121(a)(2)(E) (the HIPPA compliant medical authorization section of the Act). Ultimately, the Tennessee Supreme Court held that substantial compliance rather than strict compliance was all that was required for that particular section because the provision was non-substantive and no prejudice had befallen the defendants as a result of the non-compliance.

Long story short, Givens v. Vanderbilt Univ. M2013-00226-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014), is a medical malpractice case that was dismissed without prejudice for failure to give pre-suit notice, since that is the appropriate remedy identified by the Tennessee Supreme Court in Stevens v. Hickman Community Health Care, Inc., – S.W.3d –, 2013 WL 6158000 (Tenn. Nov. 25, 2013).

Because Plaintiffs did not make any attempt to give pre-suit notice, the Court of Appeals rejected Plaintiffs’ claim that the failure to give notice should be excused for extraordinary cause under Tenn. Code Ann. Sec. 29-26-121(b). Plaintiffs previously used their savings statute by way of a voluntary nonsuit in the case, so the Court of Appeals acknowledged that dismissal without prejudice effectively makes the case time-barred.

The longer version is a painful tour down civil and appellate procedure, with multiple cases, dismissals, appeals, and remands. Suffice it to say that (based on prior appellate opinions applied to this case):